The Supreme Court of Taiwan: Any Exploitation of a Work Shall Indicate its Author’s Name or Appellation

Moral rights are protected interests of authors toward their works with respect to their personality and spirit. A copyrighted work is considered an embodiment of its author’s personality, such as fame and reputation, and therefore there is a need to defend interests arising from such a uniquely moral relationship between the author and his/her works. These protected interests are known as moral rights, which comprise “the right to publicly release the work”, “the right of attribution” and “the right of integrity” as respectively set forth in Articles 15 to 17 of the Copyright Act.

Regarding the right of attribution, Paragraph 1, Article 16 of the Copyright Act stipulates that the author of a work is entitled to indicate his/her name or appellation or no name on the original or copies of the work, or when the work is publicly released. Even when the name or appellation is indicated, it may be omitted provided that the purpose and method of exploitation of the work neither present any likelihood of harm to the author’s interests nor deviate from commonly accepted practices pursuant to Paragraph 4 of the same Article. In order to protect authors’ right of attribution and readers’ right to identify the author, Article 64 of the Copyright Act provides that any fair use of another person’s work shall offer a clear indication of the source of the work, which means indicating the author’s name or appellation in a reasonable manner except where the work is anonymous or the author is not known. Therefore, any exploitation of a work shall indicate its author’s name or appellation to pay the author due respect except when the work is anonymous or the author is not known, or except in circumstances set forth in Paragraph 4, Article 16 of the Copyright Act or unless otherwise specified in contracts. Such interpretation has been affirmed by the Supreme Court of Taiwan in its No. 106-Tai-Shang-Zi-54 civil judgment made on March 29, 2017.

A summary of case facts is as follows: The author claimed that it created six pieces of marketing material to sell wines and published them on its own website, with the name of the author clearly indicated next to the title of the front page. However, soon after searching marketing materials online, without the consent of the author, the exploiter reproduced these materials and published them with no indication of the original author’s name on its own Facebook page and website to promote its own wine products. The aforesaid reproduction then triggered disputes over whether or not the exploiter has infringed the author’s right of attribution covered under its moral rights.

The court of first instance held that the exploiter did not infringe the author’s right of attribution by means of publishing adapted materials under its name since the original materials were partially copied and adaptations were made. According to the court of first instance, the exploiter did reproduce the six pieces of marketing material at issue but not copied them fully and completely, with some parts deleted and introductions to wines sold by the exploiter added; therefore, the exploiter did not infringe the author’s right of attribution and it was groundless for the author to demand damages from the exploiter (please refer to Intellectual Property Court Civil Judgment No. 102-Min-Gong-Su-Zi- 2).

The court of second instance affirmed the aforesaid judgement by citing Paragraph 4, Article 16 of the Copyright Act, which exempts exploiters from indicating the author’s name or appellation if the purpose and method of exploitation neither deviate from commonly accepted practices nor present any likelihood of harm to the author’s interests.According to the court of second instance, the exploiter involved in the dispute exploited the marketing materials at issue with purpose to inform readers of its sale of wines introduced in these marketing materials,without misguiding readers to believe it created these materials. Moreover, such exploitation had exerted no impact on the author. The exploiter therefore committed no infringement upon the author’s right of attribution (please refer to Intellectual Property Court Civil Judgment No.103-Min-Gong-Shang-Zi- 1).

In response to the abovementioned disputes, the Supreme Court ruled that authors of copyrighted works won’t be respected unless regulations set forth in Articles 16 and 64 are considered as a whole when the Copyright Act is interpreted. Consequently, any exploitation of a work shall always indicate its author’s name or appellation to pay the author due respect except when the work is anonymous or the author is not known or, unless otherwise specified in contracts, in addition to the exception set forth in Paragraph 4, Article 16 of the Copyright Act cited by the court of second instance. Therefore, to avoid potential infringement upon moral rights attributed to an author, special attention shall be paid to aforesaid restrictions regarding the right of attribution when the author’s works are exploited.